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Case Name
Iglesias Gil and A.U.I v. Spain, Requête no 56673/00, (2005) 40 E.H.R.R. 36
INCADAT reference
HC/E/542
Court
European Court of Human Rights
European Court of Human Rights (ECrtHR)
Bratza (President), Pellonpää, Pastor Ridruejo, Palm, Fischbach, Casadevall, Pavlovschi
States involved
SPAIN
Decision
29 April 2003
Final
Procedural Matters
-
European Convention on Human Rights (ECHR)
Keegan v. Ireland, 26 mai 1994, series A no 290, p. 19, § 49; Ignaccolo-Zenide v. Romania, no 31679/96, § 94, CEDH, 2000-I [INCADAT cite: HC/E/ 336].; Nuutinen v. Finland, no 32842/96, § 127, CEDH, 2000-II; Streletz, Kessler et Krenz v. Germany[GC], no 34044/96 et 35532/97, § 90, CEDH 2001-II; Al-Adsani v. United Kingdon [GC], no 35763/97, § 55, CEDH 2001; Hokkanen v. Finland 23 September 1994, series A no 299-A, p. 22, § 58. Winterwerp v. Netherlands 24 October 1979, series A, no 33, p. 20, § 46
INCADAT comment
Implementation & Application Issues
Requirement of Expedition (art. 11)
Inter-Relationship with International / Regional Instruments and National Law
European Court of Human Rights (ECrtHR) Judgments
SUMMARY
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Facts
The mother filed a criminal complaint that the child had been kidnapped. During the investigation the mother requested that the investigating judge no. 5 in Vigo have the father's mobile telephone calls intercepted and have members of the latter's family interviewed. In a decision of 19 February 1997 the investigating judge turned down both requests.
The mother then asked the judge to issue an international search and arrest warrant against the father, but in an order of 29 May 1997 this request was declined. In a decision of 5 June 1997, investigating judge no. 5 turned down further requests for investigative steps to be taken as a result of the father's contempt and failure to comply with the judgment of the family court.
Furthermore in an order of 25 May 1998 the investigating judge also examined whether a person could be prosecuted for the abduction of a minor for whom he had joint parental responsibility. He found that this was not possible under the case-law, as the only offences that could be committed in such circumstances were criminal contempt and extortion. In a further order dated 1 July 1998 the investigating judge reiterated that no international search and arrest warrant could be issued for the suspected offence of criminal contempt.
An appeal by the mother was dismissed by the Pontevedra Audiencia Provincial on 17 November 1998. The mother then sought amparo relief under Articles 24 (right to a fair hearing), 15 (right to life and mental and physical integrity) and 17 (right to liberty and security) of the Constitution, and the United Nations Convention on the Rights of the Child of 1989. In a decision of 2 June 1999, the Constitutional Court dismissed her appeal as manifestly ill-founded, holding that she had not stated why she disagreed with the reasoned decisions of the lower courts.
At the end of the investigation, on 3 July 1998, Vigo investigating judge no. 5 issued a provisional discharge order dismissing the charges against the father. He also renewed the orders for a nationwide search for the child and the order freezing his assets. He also made a final order dismissing the charges against the members of the father's family who had been implicated by the mother.
The mother then lodged an amparo appeal against those decisions with the Constitutional Court. In a decision of 17 June 1999, the Constitutional Court dismissed the amparo appeal as unfounded, holding that the mother had confined herself to contesting the decisions of the criminal courts which, in reasoned and well-founded decisions, had decided to make a provisional discharge order in respect of her criminal complaint of child abduction, while renewing certain preventive measures.
In connection with an appeal by the first applicant to the Pontevedra Audiencia Provincial against one of his decisions, investigating judge no. 5 said in a report to the Audiencia Provincial on 5 September 1997: "... The purpose of criminal proceedings is to prosecute the offence and, if appropriate, to punish the perpetrators.
However, an investigating judge cannot, under any circumstances, allow himself to be manipulated by a woman driven by jealousy or hatred against her former husband's family and take a series of procedural measures that serve no purpose other than to inconvenience third parties uninvolved in the proceedings. In the present case, all that has been proved so far is that A.U.A. did not return his son A.U.I. to his mother at the end of the period he was allowed by the family court."
An application for an order requiring investigating judge no. 5 to stand down was dismissed in a decision of 20 November 1997. In a decision of 22 February 1999, an application for the proceedings to be declared null and void was likewise dismissed.
In a judgment of 12 February 1999, the Vigo Family Court withdrew parental responsibility from A.U.A. and awarded the first applicant full parental responsibility. On 22 December 1999 the mother (and child) seised the European Court of Human Rights complaining that there had been a lack of diligence on the part of the Spanish judicial authorities in dealing with her complaint of child abduction.
The father first made contact with the mother through a telephone call in which he imposed various conditions for the child's return, threatened her and used the prospect of her not seeing her son again as blackmail. On 12 June 2000 the mother lodged a criminal complaint against the father alleging threatening behaviour and coercion. On 30 September 2000 the Vigo investigating judge no. 6 made a provisional discharge order. On an appeal by the first applicant, that order was quashed by the Pontevedra Audiencia Provincial in a decision of 15 May 2001.
On 18 April 2000 the mother saw her son for the first time since his abduction in February 1997. On 12 May 2000 the father voluntarily appeared before the investigating judge, who, after hearing his representations, decided not to order his detention pending trial. Finally, on 18 June 2000 the mother was able to recover her child with police assistance on the father's return to Vigo with the child. The mother said that for a time she was forced to go into hiding with her son in a shelter for women.
On 14 July 2000 the Family Court granted the father access. As he was prevented from exercising that right, the father lodged a criminal complaint with the Vigo investigating judge against the mother and her parents alleging aggravated contempt. By a decision of 5 March 2002 the Chamber of the ECHR declared the mother's petition to be admissible.
Ruling
Grounds
Procedural Matters
The Court noted, firstly, that it was common ground that the relationship between the mother and her son came within the sphere of family life under Article 8 of the Convention. It therefore had to determine whether there had been a breach of the right of the mother and her son to respect for their family life. The Court reiterated that although the essential object of Article 8 was to protect the individual against arbitrary action by public authorities, there were in addition positive obligations inherent in an effective “respect” for family life. In both contexts a fair balance had to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoyed a certain margin of appreciation (see Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 49). As to the State’s obligation to take positive measures, the Court had repeatedly held that Article 8 included a right for parents to measures that would enable them to be reunited with their children and an obligation on the national authorities to take such measures (see, among other authorities, Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000-I, and Nuutinen v. Finland, no. 32842/96, § 127, ECHR 2000-VIII). However, the national authorities’ obligation to take measures to facilitate reunion was not absolute. The nature and extent of such measures would depend on the circumstances of each case, but the understanding and cooperation of all concerned was always an important ingredient. Whilst national authorities must do their utmost to facilitate such cooperation, any obligation to apply coercion in this area must be limited, since the interests, as well as the rights and freedoms of all concerned, must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 of the Convention. Where contacts with the parent might appear to threaten those interests or interfere with those rights, it would be for the national authorities to strike a fair balance between them (see Ignaccolo-Zenide, cited above, § 94). Lastly, the Court reiterated that the Convention must be applied in accordance with the rules of international law, in particular, those concerning the international protection of human rights (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 90, ECHR 2001-II, and Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI). With specific regard to the positive obligations that Article 8 of the Convention imposed on Contracting States with respect to reuniting parents with their children, they must be interpreted in the light of the 1980 Hague Convention (see Ignaccolo-Zenide, cited above, § 95). The decisive issue in the present case, therefore, was whether the national authorities took all the measures that could reasonably be demanded of them to facilitate the execution of the orders of the domestic courts awarding the first applicant custody of and sole parental responsibility for the child (see Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 22, § 58). As to the position under domestic law, the Court noted that the national courts were called upon to make decisions, primarily of a civil nature. In that regard, the Spanish courts initially granted the first applicant custody and joint parental responsibility. Subsequently, in a decision of 12 February 1999, the Vigo Family Court awarded the mother sole parental responsibility, as it took the view that the father’s repeated failure to comply with court orders regarding access and the child’s removal were very serious and detrimental to the child’s well-being and proper development. In the light of the circumstances of the case, the Court considered that those decisions were consistent with both the mother's and the child’s interests. The Court noted, however, that the main issue in the present case was the transfer overseas and illicit non-return of the child. The Court examined therefore whether, in the light of their international obligations arising in particular under the Hague Convention, the domestic authorities had made adequate and effective efforts to secure compliance with the mother’s right to the return of her child and the child’s right to be reunited with its mother (see Ignaccolo-Zenide, cited above, § 95). In that connection, the Court noted that, under Article 96 § 1 of the Constitution, international treaties that have been validly ratified form part of the domestic legal order. Spain had been a Contracting Party to the Hague Convention since 16 June 1987. The United States, the country to which the child was taken by his father, had also ratified it. Furthermore, by virtue of Institutional Law no. 1/1996 of 15 January 1996 on the legal protection of minors, the Spanish national authorities were under a duty to guarantee compliance with the rights of minors in accordance with international treaties that had been ratified by Spain. The Court noted that right from 4 February 1997, that is to say just a few days after the mother's son was taken by his father, the investigating judge had ordered a nationwide search and the child’s immediate return to the mother. Furthermore, according to submissions made by the Government at the hearing, as a result of the initial inquiries, it was very quickly established that father and child were in the United States. Articles 3, 7, 12 and 13 of the Hague Convention contained measures designed to secure the immediate return of children who had been wrongfully removed to or retained in another Contracting State. In that connection, the Court noted that under Article 3 of the Hague Convention, the removal or retention of a child was to be considered wrongful where it was in breach of rights of custody attributed to a person under the law of the State in which the child was habitually resident immediately before the removal or retention. On that point, it was not disputed that the child was taken to the United States and wrongfully retained there by the father. His situation was without doubt covered by that provision of the Hague Convention. Furthermore, Articles 6 and 7 of the Hague Convention required Central Authorities to cooperate with each other and to promote cooperation amongst the competent authorities in their respective States to secure the prompt return of children. In particular, either directly or through any intermediary, they were to take all appropriate measures to discover the whereabouts of a child who had been wrongfully removed or retained and to secure the return of the child to the parent with custody. To that end, Article 11 of the Hague Convention required the judicial or administrative authorities of Contracting States to act expeditiously in proceedings for the return of children. The Court noted that these measures could be taken by the relevant domestic authorities on their own initiative. Furthermore, Article 158 of the Civil Code as amended by Institutional Law no. 1/1996 of 15 January 1996 on the legal protection of minors gave the courts power to take of their own motion, inter alia, all appropriate measures to remove the child from danger and to prevent it from coming to harm. Once the Spanish judicial authorities had established that the child had been wrongfully removed, the Court considered that the national authorities concerned should have taken appropriate measures as set out in the relevant provisions of the Hague Convention to secure his return to its mother. The authorities did not take any of the measures prescribed in the Hague Convention to facilitate the enforcement of the court orders in favour of the mother and her child. In view of these findings, the Court held that the criminal aspect of the proceedings no longer has a significant bearing on the case. After having also considered the domestic courts’ refusal to issue an international search and arrest warrant against the father the Court concluded that the Spanish authorities had failed to make adequate and effective efforts to enforce the mother’s right to the return of her child and to the child’s right to be reunited with its mother and thereby breached their right to respect for their family life, as guaranteed by Article 8 of the Convention. There had, accordingly, been a violation of that provision.
INCADAT comment
Requirement of Expedition (art. 11)
Preparation of INCADAT commentary in progress.